Policies and Rules for the Direct Broadcast Satellite Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 100

[FCC 98-26; IB Docket No. 98-21]

Policies and Rules for the Direct Broadcast Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Communications Commission (FCC) proposes to amend

and relocate the regulations covering the Direct Broadcast Satellite

(DBS) service. The notice of proposed rulemaking also asks whether the

FCC should consider adopting new rules addressing horizontal

concentration in the multi-channel video programming distribution

(MVPD) market, such as limitations on cable/DBS cross-ownership. The

actions are necessary to consolidate and harmonize the Commission's

rules for satellite services and to obtain public comment on policies

for the DBS service. The effect of relocating the DBS service rules is

to simplify and harmonize the rules for satellite services in one part

of the Commission's rules.

DATES: Submit comments on or before April 6, 1998. Submit reply

comments on or before April 21, 1998. Written comments by the public on

the proposed information collections are due April 6, 1998. Written

comments must be submitted by the Office of Management and Budget (OMB)

on the proposed information collections on or before May 5, 1998.

ADDRESSES: Send written comments and reply comments to Office of the

Secretary, Federal Communications Commission, 1919 M Street, N.W., Room

222, Washington, D.C. 20554. For purposes of this proceeding, we hereby

waive those provisions of our rules that require formal comments to be

filed on paper, and encourage parties to file comments electronically.

File electronic comments using the electronic filing interface

available on the FCC's World Wide Web site at

http://dettifoss.fcc.gov:8080/cgi-bin/ws.exe/beta/ecfs/upload.hts>.

Further information on the process of submitting comments

electronically is available at that location and at http://

www.fcc.gov/e-file/>. In addition to filing comments with the

Secretary, a copy of any comments on the information collections

contained herein should be submitted to Judy Boley, Federal

Communications Commission, Room 234, 1919 M Street, N.W., Washington,

DC 20554, or via the Internet to [email protected], and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W., Washington, DC

20503 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT:

Technical Information: Kim Baum, 202-418-0756

Economic Information: Doug Webbink, 202-418-1494

Legal Information: Chris Murphy, 202-418-2373

For additional information concerning the information collections

contained in this Notice contact Judy Boley at 202-418-0214, or via the

Internet at [email protected].

SUPPLEMENTARY INFORMATION:

1. The Commission is authorized to conduct this rulemaking pursuant

to its statutory authority contained in the Communications Act of 1934,

as amended. 47 U.S.C. 154(i), 303(v). The Commission has historically

regulated direct broadcast satellite (DBS) service, which is

transmitted using frequency bands that are internationally allocated to

the broadcast satellite service (BSS), and direct-to-home fixed-

satellite service (DTH-FSS), which is transmitted using fixed-satellite

service (FSS) frequency bands, separately. The Commission rules for the

DBS service are codified in 47 CFR part 100, while FSS rules, including

those applicable to DTH-FSS providers, can be found in part 25. Since

both DBS and DTH-FSS provide video services directly to the home via

satellite, the notice of proposed rulemaking (Notice) proposes to

consolidate, where possible, the DBS service and technical rules with

the rules for DTH-FSS and other satellite services under part 25 and to

eliminate in its entirety part 100. The Notice also proposes to move

certain DBS-specific part 100 rules into part 25 and to eliminate

several part 100 rules which the Commission believes are no longer

needed. For instance, the Notice proposes to eliminate the part 100

rules (Secs. 100.72-.80) which govern DBS auctions and to conduct DBS

auctions under the general auction rules contained in part 1, subpart

Q. The Notice also seeks comment on proposals to revise the DBS

technical rules to conform to the Commission's experience regulating

the service. The Notice further proposes to amend the Commission's part

25 rules, where necessary, in order to render them applicable, where

appropriate, to DBS and DTH-FSS, as well as other satellite services.

2. In proposing to incorporate certain part 100 rules into part 25,

the Notice highlights several rules of particular

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importance. The Notice seeks comment on a proposal to move the existing

DBS foreign ownership rules from part 100 to part 25, and asks whether

the Commission should modify these rules. The Notice also seeks comment

on how the Commission can strengthen its rules regarding the provision

of DBS service to Alaska and Hawaii and whether it should adopt

geographic service rules for Puerto Rico and other U.S. territories and

possessions. Because it is the Commission's goal to promote competition

in the multi-channel video programming distribution (MVPD) market

generally, the Notice also seeks comment as to whether new rules

addressing horizontal concentration in the MVPD market, such as

limitations on cable/DBS cross-ownership, are necessary in order to

prevent anti-competitive conduct in the MVPD market.

Paperwork Reduction Act of 1995

3. This Notice contains either a proposed or modified information

collection. The Commission, as part of its continuing effort to reduce

paperwork burdens, invites the general public and the Office of

Management and Budget (OMB) to comment on the information collections

contained in this Notice, as required by the Paperwork Reduction Act of

1995, Public Law 104-13. Public and agency comments are due at the same

time as other comments on this Notice; OMB notification of action is

due 60 days from date of publication of this Notice in the Federal

Register. Comments should address: (a) Whether the proposed collection

of information is necessary for the proper performance of the functions

of the Commission, including whether the information shall have

practical utility; (b) the accuracy of the Commission's burden

estimates; (c) ways to enhance the quality, utility, and clarity of the

information collected; and (d) ways to minimize the burden of the

collection of information on the respondents, including the use of

automated collection techniques or other forms of information

technology.

OMB Approval Number: 3060-0678.

Title: Commission's Rules and Regulations for Satellite Application

and Licensing Procedures.

Form No.: 312.

Type of Review: revision of existing collection.

Respondents: Businesses or other for profit, including small

businesses, governments.

Number of Respondents: 1,320.

Estimated Time Per Response: The Commission estimates that all

respondents will hire an attorney or legal assistant to complete the

form. The time to retain these services is 2 hours per respondent.

Total Annual Burden: 2,640 hours.

Estimated Costs Per Respondent: This includes the charges for

hiring an attorney, legal assistant, or engineer at $150 an hour to

complete the submissions. The estimated average time to complete the

Form 312 is 11 hours per response. The estimated average time to

complete space station submissions is 20 hours per response. The

estimated average time for prepare submissions using non-U.S. licensed

satellites is 22 hours per response. The estimated average time to

complete the ASIA submission is 24 hours per response. Earth station

submissions: $2085. ($1650 for Form 312; $375 remainder of application;

$60 for outside hire). Space station submissions and Non-U.S. licensed

satellite filings: $4710 ($1650 for Form 312; $3000 for remainder of

submission; $60 for outside hire). ASIA submissions: $3,660 ($3,600 for

submission; $60 for outside hire). Fee amounts vary by type of service

and application. Total fee estimates for industry: $5,997,910.00 Needs

and Uses: In accordance with the Communications Act, the information

collected will be used by the Commission in evaluating applications

requesting authority to operate pursuant to part 25 of the Commission's

rules. The information will be used to determine the legal, technical,

and financial ability of the applicants and will assist the Commission

in determining whether grant of such authorizations are in the public

interest.

Initial Regulatory Flexbility Analysis

Pursuant to the Regulatory Flexibility Act of 1990, 5 U.S.C. 601-

612, (RFA) as amended by the Contract with America Advancement Act of

1996, Public Law 104-121, 110 Stat. 847, the Commission's Initial

Regulatory Flexibility Analysis with respect to this Notice of Proposed

Rulemaking is as follows:

Reason for Action

This Notice of Proposed Rulemaking (Notice) proposes to streamline

and harmonize the Commission's direct broadcast satellite (DBS) service

rules. The Notice proposes to incorporate the DBS rules into part 25,

the satellite communications part of the Commission's rules. The Notice

does not envision that the relocation of the DBS service rules will

substantially alter the licensing provisions for the DBS service under

current part 100. The DBS service was initially developed in 1982 with

the promulgation of interim rules. Inquiry into the Development of

Regulatory Policy in Regard to Direct Broadcast Satellites for the

Period Following the 1983 Regional Administrative Radio Conference

(Report and Order), 90 FCC2d 676 (1982). Since 1994, DBS licensees have

begun to provide service into the United States. The Notice explains

that the interim rules are outmoded with respect to the application and

licensing procedures and the technical parameters for existing systems.

Consistent with the FCC's goals of regulating services subject to its

jurisdiction in a common-sense manner and promoting competition, this

rulemaking seeks to streamline and simplify the FCC's rules governing

the DBS service by applying a unified Form 312 for DBS space and earth

stations. For instance, The NPRM proposes to eliminate the part 100

rules (sections 100.72-.80) which govern DBS auctions and to regulate

DBS auctions under the general auction rules contained in part 1,

subpart Q. In proposing to incorporate certain part 100 rules into part

25, the Notice highlights two rules of particular importance. The

Notice seeks comment on a proposal to move the existing DBS foreign

ownership rules from part 100 to part 25 and whether the FCC should

modify those rules in the event it affirms the FCC International

Bureau's decision in the order authorizing MCI to construct, launch,

and operate a DBS system at the 110 degrees W.L. orbital position and

whether similar restrictions should apply to DTH-FSS. MCI

Telecommunications Corporation, Application for Authority to Construct,

Launch and Operate a Direct Broadcast Satellite System at 110 degrees

W.L., DA 96-1793 (1996). The Notice also seeks comment on how the FCC

can strengthen the rules regarding the provision of DBS service to

Alaska and Hawaii, Puerto Rico, and other U.S. territories and

possessions. Because it is the FCC's goal to promote competition in the

MVPD market generally, the Notice also seeks comment as to whether new

rules addressing horizontal concentration in the MVPD market, such as

limitations on cable/DBS cross-ownership, are necessary in order to

prevent anti-competitive conduct in the DBS or MVPD markets.

Objectives

The objective of this proceeding is to streamline the DBS service

rules and harmonize the regulation of the DBS service with other

satellite services, where appropriate. While incorporating the DBS

rules into part 25, the location of the other satellite communications

service rules, the Notice seeks comment

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on relocation of the foreign ownership rules of section 100.11; further

measures the FCC could take to promote service to Alaska and Hawaii and

other U.S. territories and possessions; comments on proposals to update

the DBS technical rules; and comment on whether to adopt rules to

address issues related to concentration in the multi-channel video

programming distribution market. The Notice proposes that adoption of

the proposed rules will reduce regulatory burdens and, with minimal

disruption to existing permittees and licensees, result in the

continued development of DBS and other satellite services to the

public.

Legal Basis

This Notice of Proposed Rulemaking is adopted pursuant to Sections

1, 4(i), 303(r), 303(v), 307, 309(a), 309(j), 310 of the Communications

Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(r), 303(v), 307,

309(a), 309(j), 310, and 5 U.S.C. 553 of the Administrative Procedures

Act.

Description and Estimate of Small Entities Subject to the Rules

The Commission has not developed a definition of small entities

applicable to geostationary or non-geostationary orbit fixed-satellite

or direct broadcast satellite service applicants or licensees.

Therefore, the applicable definition of small entity is the definition

under the Small Business Administration (SBA) rules applicable to

Communications Services, Not Elsewhere Classified. This definition

provides that a small entity is one with $11.0 million or less in

annual receipts. (13 CFR 121.201, Standard Industrial Classification

(SIC) Code 4899). According to Census Bureau data, there are 848 firms

that fall under the category of Communications Services, Not Elsewhere

Classified which could potentially fall into the DBS category. Of

those, approximately 775 reported annual receipts of $11 million or

less and qualify as small entities. (U.S. Bureau of Census, U.S.

Department of Commerce, 1992 Census of Transportation, Communications,

Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table

2D, Employment Size of Firms: 1992, SIC Code 4899 (issued May 1995)).

The rules proposed in this Notice apply only to entities providing DBS

service. Small businesses do not have the financial ability to become

DBS licensees because of the high implementation costs associated with

satellite services. Since this is an established service, however, with

limited spectrum and orbital resources for assignment, we estimate that

no more than 15 entities will be Commission licensees providing these

services. Therefore, because of the high implementation costs and the

limited spectrum resources, we do not believe that small entities will

be impacted by this rulemaking.

Reporting, Recordkeeping, and Other Compliance Requirements

The proposed action in this Notice would affect those entities

applying for DBS construction permits and licenses and those applying

to participate in auctions of DBS spectrum in the future. In the case

where there is not any mutual exclusivity, applicants will be required

to follow the recently streamlined application procedures of part 25

for space and earth station licenses by submitting the information

required by Form 312, where applicable. In the case where there is

mutual exclusivity between applicants for DBS authorizations, the

competitive bidding rules of part 1 will be used to determine the

licensee. Applicants will have to comply with the requirement to file a

short-form (FCC Form 175). Completion of short-form FCC Form 175 to

participate in an auction is not estimated to be a significant economic

burden for these entities. The action proposed will also affect auction

winners in that it will require them to submit a long Form 312

application for authorization. This process will be required by all DBS

applicants whether selected through the competitive bidding process or

not.

Federal Rules That Overlap, Duplicate or Conflict With These Proposed

Requirements

None. One of the main objectives of the Notice is to eliminate any

existing overlap or duplication of rules between the DBS and other

satellite services.

Any Significant alternatives minimizing impact on small entities

and consistent with stated objectives: In developing the proposals

contained in this Notice, we have attempted to minimize the burdens on

all entities in order to allow maximum participation in the DBS market

while achieving our other objectives. The Notice seeks comment on the

impact of the proposals on small entities and on any possible

alternatives that could minimize the impact of the rules on small

entities. In particular, the Notice seeks comment on alternatives to

the reporting, recordkeeping, and other compliance requirements.

Comments Are Solicited

Written comments are requested on this Initial Regulatory

Flexibility Analysis. These comments must be filed in accordance with

the same filing deadlines set for comments on the other issues in this

Notice, but they must have a separate and distinct heading designating

them as responses to the Regulatory Flexibility Analysis. The Office of

Public Affairs, Reference Operations Division shall send a copy of this

Notice to the Chief Counsel for Advocacy of the Small Business

Administration in accordance with section 603(a) of the Regulatory

Flexibility Act.

List of Subjects

47 CFR Part 25

Satellites.

47 CFR Part 100

Satellites.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98-5938 Filed 3-5-98; 8:45 am]

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